FEATURED POST

America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Indiana is in a death penalty corner

Rural Indiana
Indiana officials probably don't want to have a big debate about the death penalty, but they more or less have to. The issue has been hijacked by capital punishment opponents, who have pushed the state into a corner by challenging the lethal cocktail used to carry out state-sanctioned executions. If the state can't talk its way out of the corner, it might have to go back to "less humane" methods of execution.

Most death penalty states have a similar dilemma. Influenced by anti-capital punishment activists, major drug companies have stopped making their lethal products available to states using them for capital punishment, so states have been scrambling to find alternatives.

In 2014, the Indiana Department of Corrections came up with a 3-drug cocktail of methohexital, potassium chloride and pancuronium bromide, which no state or federal prisoner in the country has been executed by. Other states coming up with their own concoctions have had horrible instances of prisoners dying gruesome, drawn-out deaths, which has put the "cruel and unusual punishment" argument back on the table.

Roy Lee Ward, one of Indiana's 11 prisoners on death row, sued the state in 2015, arguing that the DOC skirted procedures when it chose the new drugs. A LaPorte Circuit judge dismissed the claim. But now a 3-judge Indiana Court of Appeals panel has reversed the lower court. The judges found that when the DOC chose the new drugs, it violated Ward's rights under the state and federal constitutions. The DOC did not follow guidelines set by the General Assembly that regulate how state agencies change its rules, including holding a public hearing, the court said.

The state's options are limited. Even if it backs up and follows all the procedures the court says are necessary, it may be a moot point. Indiana's stock of lethal injection drugs is expired - and, given the attitude of the drug companies, the state is not likely to replenish them any time soon.

So what is the state to do? Put executions on hold indefinitely, which would have the effect of eliminating capital punishment? Bring back the gas chamber, hanging, the firing squad, the electric chair?

It is more than a little ironic that lethal injections were settled on as a more humane way of dispatching capital offenders. In trying to deal with claims of its cruelty, the state might have to revert to killing in ways considered even more barbaric.

Maybe it's time for one of those public hearings.

Source: News-Sentinel, Editorial, June 6, 2017

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